§ 23.04 The Fifth Amendment Privilege: The Elements
| Jurisdiction | United States |
The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . ." The protection of the clause is available only when four elements are met: (i) the "person" element, (ii) the compulsion element, (iii) the criminal case element, and (iv) the "witness against himself" element.67 Each of these requirements is discussed in turn in this section. In addition, because the compulsion element presents an issue in almost every police interrogation, it is considered in greater detail in Section 23.05.
[A] "No Person"
Because the Fifth Amendment begins with the words "no person," the Supreme Court has declared that artificial entities, such as corporations,68 labor unions,69 and partnerships,70 may not assert the privilege against self-incrimination, although a sole proprietor may.71 Furthermore, pursuant to the so-called "collective entity" doctrine, a custodian of an entity's records may not oppose a subpoena duces tecum (an order to a person in possession of specified documents, relevant to a proceeding, to produce them for possible use at trial) by invoking her personal privilege against self-incrimination in order to protect the entity.72 In short, a collective-entity is not a "person," and cannot assert the privilege, whether the result is incrimination of the entity or actual individuals.
With that proviso, however, the Fifth Amendment generally applies to any (real) person. Therefore, any witness in a criminal trial — not only the criminal defendant — may invoke the personal privilege. Thus, as critics of the Fifth Amendment privilege like to point out, an innocent defendant cannot compel a person with guilty knowledge to testify and, "according to every court that considered the issue . . . [cannot] force [the w] itness to invoke the privilege before the jury."73
[B] "Shall Be Compelled"
The Fifth Amendment prohibits compelled self-incrimination, but it is not the case that any form of state-created pressure constitutes impermissible compulsion. Far from it, as the Supreme Court has observed:
The criminal process, like the rest of the legal system, is replete with situations requiring "the making of difficult judgments" as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.74
Put another way, "the government need not make the exercise of the Fifth Amendment privilege cost free."75 Indeed, as Fifth Amendment jurisprudence has developed, "the Court has placed various kinds of compulsion along a continuum, producing a list of acceptable and unacceptable governmental actions."76
In the police interrogation field, use of physical force, psychological pressures, or deception can render a confession "compelled," although more must be said on this topic.77 The required compulsion occurs, as well, if the holder of the privilege78 is forced by subpoena to testify at trial79 or to produce incriminating documents. A witness's free choice is also foreclosed by a threat of discharge from state employment for refusal to testify.80 Thus, a statement by a police officer in an internal police investigation of corruption, given after being warned that she would lose her job if she asserted her Fifth Amendment privilege, is "compelled" and may not be used against her at a subsequent criminal trial.81 The Fifth Amendment is probably violated as well if a person provides testimonial evidence against herself as an alternative to submitting "to a test so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer 'confession.'"82
On the other hand, some difficult choices are not considered constitutionally "compelled." For example, Fifth Amendment values are not violated if the government requires a driver stopped on suspicion of driving under the influence of alcohol to choose between submitting to a "painless" blood test, on the one hand, and having her refusal used against her in a criminal trial and her driving privileges revoked for up to one year, on the other. The forced choice, while not "an easy or pleasant one," does not amount to Fifth Amendment compulsion.83
[C] "In Any Criminal Case"
The privilege against self-incrimination does not apply if the only concern of the person asserting the claim is that her statements will result in personal disgrace,84loss of employment,85 or civil confinement.86 Her claim must be that the evidence she is required to produce will incriminate her in a criminal proceeding in the United States.87
Although the language of the Fifth Amendment might suggest that the privilege against compulsory self-incrimination may only be asserted during a criminal case, the Court has interpreted the Fifth Amendment to mean that the privilege may be asserted in any "proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."88 As a consequence, a person may invoke the Fifth Amendment privilege, among other places, in grand jury proceedings, civil trials, legislative and administrative hearings, and police stations, if the testimony she would give will be used against her in a domestic criminal trial.89
[D] "To Be a Witness against Himself"
As described in this subsection, a person is not "a witness against himself" unless his compelled action is both testimonial and incriminating.90
[1] What Makes a Person a "Witness"
[a] "Testimonial or Communicative" Evidence: The Rule
"The word 'witness" in the constitutional text limits the relevant category of compelled incriminating communications to those that are 'testimonial' in character."91The Court stated this limitation in Schmerber v. California,92 when it held that a person is not an involuntary "witness" against herself unless she is "compelled to testify . . . or otherwise provide the State with evidence of a testimonial or communicative nature." As the Schmerber Court explained, "[t]he distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it."93 Thus, in Schmerber, the Court held that the Fifth Amendment privilege was not implicated — the defendant was not compelled to be a "witness" against himself — when the police ordered a physician to extract the defendant's blood, and the government used the results of a blood test to convict the defendant of driving his vehicle under the influence of alcohol.
In Doe v. United States,94 the Supreme Court further explored the "testimony or communications" requirement. It stated that "in order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information." Doe explained that "the privilege is [intended] to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government."
According to Doe, this definition of "testimony" — and, thus, the meaning of the "witness" requirement in the Fifth Amendment — stems from the historical point that "the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him," as occurred in the ecclesiastical courts and the Star Chamber.
The outer boundaries of the "testimony or communications" requirement remain uncertain. However, the Court stated in Pennsylvania v. Muniz95 that, at its core, a person is compelled to be a "witness" against himself "at least whenever he must face the modern-day analog" of the "cruel trilemma" of self-accusation, perjury, or contempt that confronted sixteenth-century Star Chamber witnesses.
[b] Application of the Rule
Because "the protection of the privilege reaches an accused's communications, whatever form they might take,"96 and "[t]he privilege applies to both verbal and nonverbal conduct,"97 the line between privileged "testimony or communications," on the one hand, and unprotected "real or physical evidence, on the other, is not always easy to draw.
According to the...
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